Questions and Answers

The
following Questions and Answers have been grouped together under
different topics to help you find the answer you are looking
for.

Road Share steering group background

Q.Why is there a
Road Share steering group?

A. The steering group
was established in order to research and promote the benefits of
presumed and strict liability civil law regimes on road
safety. Members have a wide breadth of experience and are
drawn from local government, law, cycling and the wider transport
sector. It is chaired by CTC Councillor for Scotland and
Consultant Orthopaedic Trauma Consultant surgeon, Dr Chris
Oliver.

Q.What will the Road Share
steering group use this research for?

A. The
wider purpose of the steering group is to determine a consensus on
the issue of presumed and strict liability amongst cycling,
pedestrian and other outside stakeholders. Using
evidence-based research, it will provide a forum for discussion and
debate while working towards the production of a written policy
statement outlining our persuasive case for a change in the law,
and which will be presented to Scottish Government and Transport
Scotland officials and MSPs. This should also conceivably
form the basis of a Member’s Bill that could be introduced to
Holyrood.

Q.What’s the membership of the steering
group?

Benefits of Presumed Liability

Q.What would be the benefits of
presumed liability?

A. The
main benefits are two-fold.

Resolving
compensation claims for injured cyclists or pedestrians would be
much quicker and easier as the matter would ordinarily be settled
by the third party insurer. Currently, vulnerable road users
have to establish fault and this is often a difficult, expensive
and time-consuming process.

Secondly,
presumed liability would simply encourage and remind drivers to
drive carefully at all times as is wholly appropriate given the
potential risks to vulnerable road users of a motor vehicle driven
carelessly. This should then have a positive impact of
reducing accidents involving vulnerable road users.

There are
other potential benefits such as reduced legal costs. The full
benefits are currently being researched by the Road Share campaign
group.

Presumed
Liability Basics

Q. How would presumed liability
work in practice?

A. Presumed
liability for road traffic collisions would mean that following a
collision between a motorist and a cyclist or pedestrian, the
motorist would be presumed to be liable for injury, damages or
loss, unless they can demonstrate otherwise. The same would
apply in cases where cyclists collide with pedestrians. It is
fairer than the current fault-based system as it shifts the burden
of proof from the vulnerable to the powerful.

Q.Transport
Scotland conducted research as part of CAPS and could not establish
a casual link between the introduction of strict liability and an
improvement in road safety. Why are you convinced of its
effectiveness?

A.Strict
liability in Europe is widely viewed as a crucial component of
a
packageof measures designed to
safeguard the safety of cyclists and other vulnerable road
users. Consequently, assessing the impact of liability laws
in isolation can be challenging, as the impact of any other
measures must also be assessed. However, Cycle Law Scotland
has looked in-depth at the civil liability systems for road traffic
collisions between motorists and cyclists/pedestrians in Denmark,
the Netherlands and France and in each case the value of civil
liability was clear.

In France
in particular, since the passage of a strict liability regime in
1985 (Badinter Loi), bicycle safety has improved markedly. In fact,
according to 2012 OECD statistics, the fatality rate for cyclists
has decreased by 66 per cent since 1990 alone despite a relative
dearth of cycling-specific safety legislation. In France liability
will attach regardless of fault, which is not what presumed
liability does. In presumed liability the onus shifts and the
attachment of liability is capable of rebuttal. This is a system
viewed as perhaps more “culturally acceptable” in the
UK.

The
Transport Scotland research was far from comprehensive as it
examined only a handful of nations and utilised just two pieces of
evidence resulting in a report no longer than 3 sheets of A4.
However, we understand that Transport Scotland and the Scottish
Government remain open-minded about the benefits presumed liability
and willing to listen to fresh evidence,

The Road
Share steering group has undertaken to research the impact of
presumed liability on road safety regimes and they will report
their findings later in the year.

Q.Strict liability regimes might be
fair in Europe where there is a greater cycling culture but how is
it fair in Scotland when no such culture exists?

A. One of
the reasons why presumed liability is especially necessary in
Scotland is actually to help promote such a culture of
cycling. All the main political parties in Scotland recognise
the need to increase rates of active travel (cycling and walking)
for economic and health reasons and presumed liability could play
an important part in making this a reality.

We have
seen that some nations with relatively low rates of cycling, like
France, have introduced presumed or strict liability regimes as a
means to improve road safety and boost cycling numbers.

Across
Europe where strict liability is the norm, civil laws protecting
vulnerable road users are viewed as a crucial part of a range of
policies designed to increase cycling and cycle safety, which
results in a virtuous circle contributing to healthy active travel
cultures.

At the
end of the day, presumed liability affords a measure of protection
to the most vulnerable road users befitting of a socially conscious
nation like Scotland. We would like to see it as part of a
package of measures, like improved cycling infrastructure, designed
to encourage cyclists and non-cyclists alike to take to the roads
on their bikes.

A. No, the change
can be introduced by means of a Members Bill under Scots Law which
is devolved. It does not in any way over-ride or conflict with UK
road traffic law. The Scottish Parliament has acted in a
variety of areas like public health, law and transport in a way
that has deviated from the rest of the UK

Q. Aren’t the real winners from a policy
of presumed liability just the lawyers?

A.
No. Presumed liability would streamline the compensation
process by reducing the need for lengthy and costly litigation. In
fact, the insurance industry may very well see a decrease
in litigation costs and hopefully also a decrease in the number of
claims as motorists become more aware and more wary of vulnerable
road users. .

Q. Do you think presumed liability
will only serve to alienate cyclists and motorists further?

A. As cycling
increases in popularity, motorists are increasingly seeing
themselves as cyclists too evidenced by the fact that 80% of
cyclists also hold a driving license.

There
also comes a point when we have to put aside the combative “them
and us” mentality. With more cyclists on the road and many
campaigns to encourage more people to get on their bike, it's time
to look at the situation as a mature and socially conscious
nation.

We are
confident motorists will support this campaign once awareness of
the benefits of presumed liability on road safety and road
attitudes are more widely known.

Q. What other countries have strict
liability regimes?

A.
It’s the norm in Europe and includes major nations like
Belgium, Denmark, France, the Netherlands, Spain and the
Scandinavian nations.

Q What’s the difference between strict and
presumed liability and between fault and non fault systems?

A. Strict
liability does not allow a motorist to escape a finding of
liability to pay compensation in a civil action for damages.
Liability attaches to some extent regardless of fault. Presumed
liability does allow a motorist to escape liability to pay damages
to an injured cyclist or pedestrian. Fault is presumed but can be
rebutted. In presumed liability, the motorist needs to prove
negligence on the part of the cyclist or pedestrian, whereas in a
fault based system, it’s for the cyclist/pedestrian to prove
negligence of the part of the driver. Presumed liability merely
seeks to shift the burden of proof from the vulnerable to the
powerful.

Q. What other countries have a
fault-based system?

A.
In addition to the UK, only four other countries in Europe have a
fault-based system for road traffic collisions: Ireland, Malta,
Romania and Cyprus.

Q. Won’t this increase my insurance
premiums?

A. Few believe
presumed liability will increase premiums. In fact, there may
be savings to be had for insurers as presumed liability could
reduce expensive, drawn out court cases of the sort that are the
commonplace at present. With cases settled more quickly and without
resort to litigation, the insurers may well see reduced legal
costs. For most motorists involved in a collision with a
cyclist or pedestrian, the main cost would often be the loss of
their no-claims bonus!

Q. Isn’t a presumption of the
motorists' negligence unfair unless proper regulation of the road
behaviour of cyclists is introduced as well?

A. Like motorists,
all cyclists should follow the rules of the road as laid out in the
Highway Code and the vast majority do. But, it’s clear that
vulnerable road users should still be afforded a measure of
protection as they do not pose the same level of danger to other
road users that drivers do. The Highway Code Rule 204 reminds
drivers that the most vulnerable road users include pedestrians and
cyclists and it’s particularly important to be aware of children
and disabled people.

Q. Do you envisage this new road
hierarchy sub-dividing motor vehicles so that the drivers of
smaller cars are protected from larger ones?

A. No. The point of
presumed liability is to help protect vulnerable road users like
cyclists and pedestrians from more powerful vehicles.

A. These cases
would use existing procedures. Presumed liability would only apply
in cases where the operator of a vehicle collides with a cyclist or
pedestrian or where a cyclist collides with a
pedestrian.

Q. Am I going to need insurance to
ride my bike?

A. No. Third party
insurance cover for cyclists is not mandatory for presumed
liability to work. However, cyclists can presently take out
third party insurance with certain cycling membership organisations
like CTC Scotland and Scottish Cycling along with policies from
niche suppliers like Velosure and CycleGuard. Public liability
cover is also included in household contents insurance policies.
It's sensible to have third party cover and insurance premiums are
low in the region of £20 reflective of the low risk posed by
cyclists to others.

Q. Motorists must meet a number of
conditions – compulsory insurance, training, etc – before being
allowed behind the wheel. Cyclists have no such special
requirements before they’re allowed onto the road and now you’re
proposing stacking the deck even more in their favour. How is
this fair?

A. The
amount of work drivers must put in before being allowed to drive is
in part a reflection of the fact that they are in possession of a
potentially dangerous and sometimes deadly machine. All road
users must be responsible when on the road and the vast majority of
cyclists closely follow the rules of the road. The vast majority of
motorists also follow the rules of the road and are careful and
vigilant.

At the
end of the day, however, cyclists and other vulnerable road users
need the protection afforded by presumed liability as it is not a
level playing field. A cyclist or pedestrian will cause negligible
harm to a motorist but a motorist is capable of causing great harm
to a cyclist or pedestrian. Presumed liability simply states
the operator of the heavier vehicle is presumed liable in a
collision as they have the greater weight and speed and should take
greater care.

Effects on cyclist behaviour

Q. What happens if the cyclist who is injured was
actually in the wrong and the car driver did everything by the
book? Does this not mean that a car driver could be sued in Civil
court and have to prove they did nothing wrong or face paying
compensation?

A. It’s highly unlikely
that a cyclist who was entirely the “author of their own
misfortune” would attempt to sue a motorist, given the financial
and practical barriers involved. In these circumstances, the
pedestrian/cyclist is unlikely to win and the motorist is highly
likely to establish fault. The question to be answered is: through
their own actions, did the cyclist “cause” or “contribute” to his
own injury? If the answer is yes – and an insured driver will have
the full help of his insurance company to demonstrate this –
compensation will be denied or reduced.

We’re confident that,
once he or she knows the full facts, the average attentive motorist
will welcome presumed liability.

Q. Won’t presumed liability encourage
cyclists to act irresponsibly on the roads in the hopes of getting
compensation?

A. Our
proposals include ample opportunity for drivers to present evidence
against cyclists in civil proceedings to discourage reckless
behaviour on the part of cyclists apart from when the victim is
under 14 or over 70, hardly groups that will purposely put
themselves in harm’s way.

Furthermore, the
statistics presented in the recent Taylor Review do not support
this point of view as there is no compensation culture in Scotland.
Scotland has 1/10th of the population south of the
border but only around 4% of the number of motor claims. With
respect to all liabilities, the number of claims in Scotland was
also found to be considerably lower than would be expected for a
country with 1/10th the population of England. The
Taylor Review concluded, “even if a ‘compensation culture’ had
taken hold in England and Wales, the data for Scotland did not
disclose evidence of its appearance in Scotland”.

The wider
point is that no cyclist in their right mind would risk life and
limb for the sake of a potential insurance settlement and any
suggestion otherwise is just not based on reality.

Q. Wouldn’t drivers be tempted to leave
the scene of an accident for fear of being presumed liable?

A.
Drivers will always have a chance to prove the negligence of the
cyclist before any damages are awarded. They should therefore never
feel pressure to leave the scene of an accident.

Q. Wouldn’t cyclists be tempted to leave
the scene of an accident in an accident with pedestrians?

A. We
would hope that cyclists would never do this. The vast
majority of cyclists would never currently leave the scene of the
accident and there’s no evidence that presumed liability would
increase the chances of such incidents occurring. Further a large
number of cyclists do have third party insurance cover which we see
as a sensible precaution. The cost of third party insurance cover
is generally in the region of £20.00. This is nonetheless a
rare occurrence, with just 15 pedestrian/cyclist collisions leading
to a pedestrian casualty in 2012 out of nearly 2,000 such
occurrences, a rate of less than 1%.

Q. Do you expect that a change in
civil law will really persuade people to get on their bikes?

A. The top reason
given by Scots as to why they don’t take up cycling is fear of
cycling on the road. Presumed liability will help give the
sense of security needed to encourage a greater uptake of cycling
by encouraging a road user hierarchy between all road
users.

What is
clear from nations with high rates of cycling is that a form of
strict liability exists as part of a package of policies meant to
increase cycle safety. Other measures, like infrastructure, should
be pursued in tandem with presumed liability.

Q. Since cyclists don’t pay road tax,
should they even be on the road?

A. Road
tax was abolished in 1937 and what is charged how is a vehicle
excise duty (VED), which is determined by emissions. Therefore a
bike would not pay the VED, just as there is no VED for owners of a
VW Blue Motion or other small cars.

We all
pay for the upkeep of the roads through our council tax, so a
cyclist has equal rights to the road as a car.

Q. Who would pay if the cyclist is
at fault?

A. It
would be the responsibility of the cyclist to pay either through
his third party insurance cover or if no cover then out of his or
her own pocket. Many cyclists have cover either through membership
of organisations or through their policy of household contents
insurance. It’s sensible to have insurance cover.

Criminal
justice system

Q. Our justice system is founded on a
presumption of innocence until guilt is proven. Doesn’t
presumed liability violate this fundamental principle?

A. This is a
misconception. Presumed liability only applies in civil
cases where the “innocent until proven guilty” principle has
never applied. In fact strict liability laws already operate
in many aspects of civil law where protection of the vulnerable is
paramount such as consumer protection regulation and the control of
dangerous animals.

The
principle of “innocent until proven guilty” underpins our criminal
justice system and will continue to do so after presumed liability
is introduced.

Q. Aren’t you focusing on the wrong
thing? If we want to really get drivers to change their
behaviour, shouldn’t we increase criminal penalties instead?

A. There
needs to be robust enforcement of road traffic violations and
appropriate penalties but focusing on criminal law alone does not
help injured victims seek redress for injuries sustained. That
remains a matter of civil law and presumed liability offers the
requisite support to vulnerable road users. It also acts as a
constant reminder to drivers to be aware and more wary of
pedestrians and cyclists thus promoting behavioural change toward a
better culture of road share.

Scottish Government policies

Q. The Scottish Government is investing
millions in cycling infrastructure, cycling training and road
safety campaigns. Doesn’t this show they’re a government
committed to making Scotland more cycle friendly and lessen the
need for presumed liability?

A. We
welcome all investment in infrastructure, training and safety
campaigns. Presumed liability would simply be an important
additional measure which would have many benefits
including significantly improving the perception of road safety -
and at a low cost. There are long lead times before any
investments produce serious improvements in road safety and
presumed liability would have a positive effect in a short space of
time.